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Litigation Too Costly, E-Discovery a ‘Morass,’ Trial Lawyers Say

Posted Sep 9, 2008 10:00 AM CDT
By Martha Neil

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Updated: The civil justice system in the United States is so bogged down in a "morass" of e-discovery that it is often too expensive for litigants to take their cases to trial, according to a survey of trial lawyers.

Now the next step is to fix this increasingly dysfunctional system, according to a press release (PDF) about an interim report (reg. req.) on the survey, which is a joint project of the American College of Trial Lawyers and the University of Denver's Institute for the Advancement of the American Legal System (IAALS).

The release says the two organizations are now focusing on analyzing how those who have found a way to handle discovery effectively do it, and developing a set of proposed principles to apply in any forthcoming revision of the Federal Rules of Civil Procedure.

Key findings of the survey of the trial lawyers group's more than 3,800 members include:

• That court pleadings and the Federal Rules of Civil Procedure too often are used as leverage to force a settlement, rather than to better define and move a case ahead toward trial.

• That judges don't do enough to control excessive discovery (particularly e-discovery, which can be extremely expensive).

• That the current system works well for some kinds of cases, such as individual tort claims, but is unwieldy for mass tort claims, ERISA cases and administrative law actions, among others.

"The total lack of control over discovery including excessive depositions, over-broad interrogatories, unfocused requests for admissions as permitted by the rules without any court control is killing civil litigation," says one unnamed survey respondent, noting that the problem is compounded with the advent of electronic discovery.

Years ago, this respondent says, litigation files commonly "were about a half-inch thick, with maybe one deposition. The results today with all of this discovery aren't any better or fairer or more just. The results are just more expensive for both plaintiffs and defendants."

Solutions to the situation likely will require a three-pronged approach: changes in civil procedure rules, judicial attitudes and more money for the courts, says former Colorado Supreme Court Justice Rebecca Love Kourlis, in an e-mail to ABAJournal.com. She is now executive director of the IAALS.

"Discovery is out of control. Attorneys know it; judges know it; and clients know it. E-discovery just makes it more obvious," she writes. "We have to figure out a way to fix it.

"One fix is to add a requirement into the Rules of Civil Procedure that costs of discovery must be contained in such a way as to assure that they remain proportionate to the dispute—including attorneys’ fees, expert costs and document costs. Judges would then have to be willing to take control of litigation from start to finish in order to assure that the requirement is honored. To do so, they need resources."

Related coverage:

ABAJournal.com: "OK, Discovery’s a Problem, But What Can Be Done About It?"

Updated at 10:15 a.m. to include Kourlis comments. Updated at 2:53 p.m. on Sept. 11, 2008 to include link to subsequent ABAJournal.com post about Paul Saunders comments.

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